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holding that ALJ's discussion of unremarkable examination findings immediately following the ALJ's conclusion that the claimant's testimony was "not consistent with the claimant's allegations of disabling symptoms and limitations" was a clear and convincing reasons to reject testimony
Summary of this case from Phillip N. v. Comm'r, Soc. Sec. Admin.Opinion
Case No. 3:17-cv-01603-SB
11-30-2018
CHRISTON B., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
AMENDED FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Christon B. ("Plaintiff") brings this appeal challenging the Commissioner of Social Security's ("Commissioner") denial of his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons that follow, the Court recommends that the district judge reverse the Commissioner's decision because it is based on legal error and not supported by substantial evidence.
BACKGROUND
Plaintiff was born in December 1976, making him thirty-six years old on May 15, 2013, the day he filed his protective application. (Tr. 67, 78.) Plaintiff has "at least a high school education" and past relevant work as a compression molding machine tender. (Tr. 77-78.) In his application for benefits, Plaintiff alleges disability due to schizophrenia and depression. (Tr. 124, 138.)
Plaintiff alleges a disability onset date of September 1, 2010. (Tr. 67.) However, "the earliest an SSI claimant can obtain benefits is the month after which he filed his application[.]" Schiller v. Colvin, No. 12-771-AA, 2013 WL 3874044, at *1 n.1 (D. Or. July 23, 2013) (citation omitted).
On June 27, 2012, approximately one year before he filed his application, Plaintiff visited Patricia Chance ("Chance"), a licensed clinical social worker with the Oregon Department of Corrections ("ODOC"). Chance noted that Plaintiff reported that he experiences "'ghosts and cold feeling'" sensations that "started post-methamphetamine abuse," and that he "preferred heroin which he use[d] since 18 [years old]." (Tr. 383.) Plaintiff acknowledged that the foregoing sensations were "controlled by medication." (Tr. 383.) Plaintiff also "acknowledged that he wants to receive [Social Security benefits] and is not motivated to return to work as a pipe fitter." (Tr. 383.) Chance observed that Plaintiff's "[d]escribed symptoms may be post drug use or malingering for [a] depressant and [the] possibility for [Social Security]," and no follow-up was necessary because Plaintiff is "not motivated to actively participate in counseling" sessions. (Tr. 383.)
Plaintiff represents that he "has a long criminal history attributable to drug abuse," and that "between 2011 and 2013, he served a 20-month prison sentence for Theft 1." (Pl.'s Opening Br. at 2.)
In a treatment record dated April 29, 2013, Brandie Fazal ("Fazal"), a social worker and certified addiction counselor with ODOC, noted that Plaintiff had been diagnosed with a psychotic disorder not otherwise specified ("NOS") "with moderate acuity"; that Plaintiff endorsed auditory and visual hallucinations that "cannot be justified through the diagnosis of schizoaffective [disorder] or schizophrenia"; and that Plaintiff was scheduled to be released on parole on May 6, 2013, the week before he filed his protective application. (Tr. 370.) That same month, Plaintiff informed Fazal that "his current medication regimen is continuing to work for him," and Fazal observed that Plaintiff is "consistent about taking his medications and . . . realize[s] that he 'needs them' and they work for him and his [mental health] symptoms." (Tr. 371.)
On June 19, 2013, Plaintiff visited Dr. Marcela Vinocur ("Dr. Vinocur"), a psychiatrist. Plaintiff reported that he "has not had any recent symptoms," he "has not had depressive symptoms in about ten years," he "has experienced auditory hallucinations" in the past, he has "a history of IV drug use," his "drug of choice is heroin," and he recently used methamphetamine. (Tr. 411.) Dr. Vinocur noted that Plaintiff's urinalysis was "positive for amphetamines and benzodiazepines," Plaintiff's cognitive function was "grossly intact," Plaintiff's insight and judgment seemed "fair at best," Plaintiff's grooming and hygiene seemed "adequate," and Plaintiff denied any "active psychiatric symptoms," including "active hallucinations." (Tr. 411.) Dr. Vinocur's diagnoses included psychotic disorder NOS, anxiety disorder NOS, nicotine dependence, opioid dependence, insomnia, hepatitis C, and "recent use of meth[amphetamine]." (Tr. 411.)
On July 12, 2013, Plaintiff established care with Hugh Gapay ("Gapay"), a certified physician's assistant. Plaintiff complained of a toothache and "request[ed] some additional Vicodin until he can get to the dentist which should be some time next week." (Tr. 390.) Plaintiff also stated that his "mental health issues [were] well controlled at [that] time." (Tr. 390-91.) Gapay noted that his exam was "[p]ositive for depression" and "[n]egative for suicidal ideas, hallucinations, memory loss, and substance abuse," Plaintiff was "nervous/anxious and has insomnia," and Plaintiff's mood, affect, behavior, judgment, and thought content were normal. (Tr. 390-91.)
On July 31, 2013, Plaintiff presented for a follow-up visit with Dr. Vinocur. Plaintiff reported that "he recently 'detoxed off Vicodin,'" he experienced "withdrawal symptoms including nausea and emesis" when he stopped taking Vicodin, his mood was "good," he had "not experienced depression symptoms for a month or two," he felt "poorly after he relapsed on meth approximately two months ago," he "has not experienced any recent psychotic symptoms," his "mood has been fairly stable," and "[i]n general, he feels as if he has been doing fairly well." (Tr. 416.) Dr. Vinocur noted that Plaintiff seemed "to be doing fairly well" overall, Plaintiff's grooming and hygiene seemed "fair to good," Plaintiff exhibited "good eye contact," Plaintiff's affect was "full-range and appropriate," Plaintiff's thought process was "generally goal-directed," Plaintiff's thought content was "appropriate," and Plaintiff's insight and judgment seemed "fair." (Tr. 416.)
On August 16, 2013, Kara Radecki ("Radecki"), a qualified mental health practitioner, noted that Plaintiff's recent urinalysis "came up positive for amphetamines," and Plaintiff "self-admitted to his amphetamine use, reporting that he relapsed after a breakup with his girlfriend." (Tr. 418.)
On September 23, 2013, Radecki noted that Plaintiff showed "little willingness to discuss his recent relapses" and reported "he's now enrolled in classes" at Portland Community College ("PCC"). (Tr. 419.) Shortly thereafter, Radecki stated that Plaintiff had been "properly managing his [financial aid] paperwork and submitting necessary forms in a timely manner," Plaintiff "self-report[ed] no current mental health-related symptoms or stressors," and Plaintiff presented "as goal-oriented and positive while talking about school and becoming a diesel mechanic." (Tr. 420.)
On October 3, 2013, Radecki noted that Plaintiff missed his appointment, but he had "been doing 'good' and keeping busy with going to school and to the gym three times per week." (Tr. 421.)
On November 13, 2013, Plaintiff presented for a follow-up with Dr. Vinocur. Plaintiff reported that he was "doing quite well" and denied "current affective or psychotic symptoms." (Tr. 426.)
On December 11, 2013, Dr. Vinocur noted that Plaintiff seemed "to be doing fairly well," Plaintiff "got a C in his math class and [was] pleased," Plaintiff planned "to take an engine rebuilding class" after his winter break, Plaintiff was "alert and fully oriented," Plaintiff denied "any recent psychotic symptoms," and Plaintiff's insight and judgment seemed "fair to good." (Tr. 426-27.)
On December 17, 2013, Plaintiff was referred to Dr. Donna Wicher ("Dr. Wicher"), a medical and clinical psychologist, for a comprehensive psychodiagnostic evaluation. (Tr. 404-08.) Plaintiff complained primarily about "depressed mood, impaired memory and concentration, fearfulness, fatigue, stress, nervousness, extreme sadness, low self-esteem, momentary feelings of panic, compulsiveness, and sleep disturbance." (Tr. 404.) Plaintiff also reported that he "fears that ghosts are present at times," that he "no longer hear[s] voices since shortly after he began taking risperidone," and that it "has been 10 years since he used any" methamphetamine. (Tr. 404-06.)
Based on a clinical interview and review of Plaintiff's ODOC records, an adult function report, and an activities of daily living form, Dr. Wicher's primary diagnoses were schizophrenia and polysubstance abuse "presently in remission." (Tr. 407.) Dr. Wicher also stated that: (1) Plaintiff reported "ongoing symptoms of depression, but they appear to be an associated feature of his underlying Schizophrenia," a condition that is "chronic and is unlikely to remit"; (2) Plaintiff reported "improvement in his symptoms with his current medication regimen"; (3) "any type of substance abuse could easily aggravate [Plaintiff's] symptoms of psychosis"; (4) Plaintiff "described moderate deficits in his ability to perform activities of daily living, based on his lack of a regular routine, neglect of grooming and hygiene needs, and irresponsibility in handling money"; (5) Plaintiff "appears to have moderate to marked deficits in social functioning, based on his relative social isolation and discomfort around others"; (6) "some mild concentration difficulties were suggested by [Plaintiff's] mental status testing"; (7) Plaintiff's "pace was not formally assessed, but he was unable to complete a background questionnaire administered prior to the evaluation in a typical amount of time"; (8) Plaintiff's "deficits in concentration, persistence, and pace appear to be moderate"; (9) Plaintiff "did not report a history of any recent, lengthy episodes of psychological decompensation, but he appears to function at a marginal level on an ongoing basis"; (10) Plaintiff's "moderate deficits in his ability to perform activities of daily living, moderate to marked deficits in social functioning, and moderate deficits in concentration, persistence, and pace represent the primary psychological barriers to returning him to full-time, sustained employment"; and (11) "[w]ith ongoing medication management and continued abstinence from drug use, [Plaintiff's] functioning may stabilize further, increasing the likelihood that he could sustain employment more successfully in the future." (Tr. 407-08.)
On January 8, 2014, Plaintiff reported that "he was doing well and . . . thing[s] were going well for him lately." (Tr. 428.) Plaintiff also reported that he was "not having any troubles with cravings or with [mental health] symptoms," and he "started his next semester of school and that it seem[e]d like there [would] be a lot of reading but he [was] not too worried about it yet." (Tr. 428.) Around the same time, Plaintiff reported that he "passed all of his [first semester] classes," and he was keeping busy by, inter alia, going to school and "lifting weights 3 times a week." (Tr. 428.)
On January 15, 2014, Dr. Bill Hennings ("Dr. Hennings"), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 130.) Based on his review of the record, Dr. Hennings concluded that Plaintiff's mental impairments failed to meet or equal listings 12.03 (schizophrenic, paranoid, and other psychotic disorders) and 12.09 (substance addiction disorders).
Also on January 15, 2014, Dr. Hennings completed a mental residual functional capacity assessment form, in which he rated Plaintiff's limitations in each of sixteen categories of mental ability. (Tr. 131-33.) Dr. Hennings rated Plaintiff to be "[n]ot significantly limited" in twelve categories and "[m]oderately limited" in four categories. (Tr. 132-33.) In addition, Dr. Hennings determined that: (1) Plaintiff can "understand and follow simple 1-2 step tasks"; and (2) if Plaintiff worked in a "slow placed routine setting not in direct contact with [the] public," he can sustain the attention, concentration, and pace necessary for "simple 1-2 step task completion." (Tr. 132-33.)
On May 12, 2014, Plaintiff visited Laura Escalona-Flores ("Escalona-Flores"), a social worker at Luke-Dorf. Plaintiff reported that he was evicted from structured housing on March 20, 2014, "due to several 'dirty UA's,'" he was recently denied Social Security benefits, he had "been 'depressed' since he moved out," and he "relapse[d] on meth approximately three weeks ago." (Tr. 485.) Plaintiff also reported that "he dropped out of his [d]iesel mechanics program recently," he was "no longer attending school," and he "may consider employment in the future." (Tr. 485-86.) Escalona-Flores noted that Plaintiff's "reporting appear[ed] to be inconsistent with the record from [another clinic] in regards to his substance use." (Tr. 485.) In addition, Escalona-Flores noted that it was "unclear" how much Plaintiff's substance use and trauma history (i.e., Plaintiff's fiance reportedly died unexpectedly in 2006) "has impacted his presenting symptoms [i.e., depression and auditory and visual hallucinations] and reported history of symptoms." (Tr. 485.)
On June 10, 2014, Dr. Dorothy Anderson ("Dr. Anderson"), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 143.) Like Dr. Hennings, Dr. Anderson found that Plaintiff's mental impairments failed to meet or equal listings 12.03 and 12.09.
Also on June 10, 2014, Dr. Anderson completed a mental residual functional capacity assessment form, in which she rated Plaintiff's limitations in each of sixteen categories of mental ability. (Tr. 145-46.) Like Dr. Hennings, Dr. Anderson rated Plaintiff to be "[n]ot significantly limited" in twelve categories and "[m]oderately limited" in four categories. (Tr. 145-46.) In addition, Dr. Anderson determined that: (1) Plaintiff "can consistently remember simple 1-2 step instructions"; (2) Plaintiff "can consistently maintain" the concentration, persistence, and pace necessary "for simple tasks for normal 2 hour work periods"; and (3) if Plaintiff worked in a "slow placed routine setting not in direct contact with [the] general public," he would be able to sustain the attention, concentration, and pace necessary for "simple 1-2 step task completion." (Tr. 145-46.)
On October 1, 2014, Plaintiff visited Daniel Martino ("Martino"), a certified physician's assistant. During the visit, Plaintiff complained of blurred vision, lightheadedness, and syncopal episodes, and he reported "[i]ntermittent use of methamphetamine." (Tr. 470.) Martino encouraged Plaintiff "to commit himself to being clean" and "discussed how use of recreational drugs, specifically meth[amphetamine], complicates the work up for these concerns he has." (Tr. 472.)
On April 29, 2015, Plaintiff visited Dr. Vinocur and admitted that he relapsed "on meth[amphetamine] on a couple of occasions recently" because he was "having difficulties with his roommate," who allegedly stole from him and "damaged his personal property." (Tr. 444.) Plaintiff also reported "doing fairly well" and having "good control of psychotic symptoms." (Tr. 444.)
On May 19, 2015, Plaintiff reported that he "continues to use methamphetamine." (Tr. 494.)
On September 8, 2015, Plaintiff informed Dr. Kimberley Neroda ("Dr. Neroda"), that he continued to experience lightheadedness and that he last used methamphetamine in August 2015. (Tr. 449.)
On September 23, 2015, Plaintiff presented for a follow-up visit with Dr. Vinocur. Plaintiff "denie[d] auditory hallucinations but endorse[d] sometimes bothersome tactile hallucinations." (Tr. 442.) Plaintiff also "endorse[d] some mild depressive symptoms and state[d] that he has been having nightmares." (Tr. 442.) In addition, Plaintiff admitted that he "has made threats towards" his mother's husband because he feels disrespected "when he asks [him] to do certain things" around the house, and he "might hurt him if he continues to feel pressed[.]" (Tr. 442.)
On May 6, 2016, Plaintiff appeared and testified at a hearing before an Administrative Law Judge ("ALJ"). (Tr. 86-109.) Plaintiff testified that he lives with his mother, he does not have a driver's license because he "got a DUI" when he was eighteen years old and "never went through their class," he earned his General Equivalency Degree, he went to PCC but decided to stop because "it was just too difficult," and he made money over the course of the last three months by "buying things from thrift stores and selling them on eBay." (Tr. 92-94.) Plaintiff also testified that he cooks "TV dinners," he spends a "quarter of [his] day" taking pictures of the items that he bought at thrift stores and conducting sales on eBay, and he spends time organizing his belongings, going out to eat with "a couple friends," and watching movies with a friend. (Tr. 94-95.)
When asked about his primary barriers to sustaining gainful employment, Plaintiff cited episodes of distorted vision and fainting, his "really bad" short-term memory, and the fact that he gets easily "confused" when performing multi-step tasks. (Tr. 95-98.) In addition, Plaintiff testified that he has not had any visual hallucinations "for some months now," he feels like he is being "touched mostly on [his] legs and [his] feet" and he "feels like it's getting worse," he used methamphetamine approximately three months ago, and his medications help a little bit. (Tr. 98-99.)
The ALJ posed a series of hypothetical questions to a Vocational Expert ("VE") who testified at Plaintiff's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform work at all exertion levels, subject to these limitations: (1) the worker cannot climb ladders, ropes, or scaffolds; (2) the worker cannot work around heights or dangerous machinery; (3) the worker is only "able to remember, understand, and carry out tasks or instructions consistent with occupations of [a Specific Vocational Preparation level of] 1 or 2"; (4) the worker cannot meet fast-paced production requirements, and therefore needs to be limited to work "involving only simple work-related decisions with few, if any, workplace changes"; (5) the worker cannot "perform work that requires interaction" with the public; and (6) the worker can "work in proximity to coworkers, but would do best performing tasks that do not require teamwork." (Tr. 105-06.) The VE testified that the hypothetical worker could not perform Plaintiff's past work as a compression molding machine tender, but the worker could be employed as an industrial cleaner and salvage laborer. (Tr. 106-07.)
Responding to the ALJ's second hypothetical, the VE testified that the hypothetical worker could be employed as an industrial cleaner and salvage laborer, even if he was limited to "medium work such as lifting 25 pounds frequently and 50 pounds occasionally, and stand[ing] or walk[ing] and sit[ting] for up to eight hours in each of those categories[.]" (Tr. 107.) Responding to the ALJ's final hypothetical, the VE confirmed that the hypothetical worker could not perform the jobs above if he was only able to perform seventy-five percent of his daily tasks. (Tr. 107.)
In a written decision issued on June 1, 2016, the ALJ applied the five-step process set forth in 20 C.F.R. § 416.920(a)(4), and found that Plaintiff was not disabled. See infra. The Social Security Administration Appeals Council denied Plaintiff's petition for review, making the ALJ's decision the Commissioner's final decision. Plaintiff timely appealed to federal district court.
THE FIVE-STEP DISABILITY ANALYSIS
I. LEGAL STANDARD
A claimant is considered disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are: (1) whether the claimant is currently engaged in any substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant is capable of performing other work that exists in significant numbers in the national economy. Id. at 724-25. The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).
The Commissioner bears the burden of proof at step five of the process, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations omitted).
II. THE ALJ'S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is disabled. (Tr. 67-79.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since May 15, 2013, the day he filed his protective application. (Tr. 69.) At step two, the ALJ found that Plaintiff had the following severe impairments: "[P]sychotic disorder not otherwise specified; schizophrenia; polysubstance abuse; and depression." (Tr. 69.) At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or equals a listed impairment. (Tr. 69.) The ALJ then concluded that Plaintiff had the residual functional capacity ("RFC") to perform "a full range for work at all exertional levels," subject to the following limitations: (1) Plaintiff cannot climb ladders, ropes, or scaffolds; (2) Plaintiff cannot "work around hazards, such as unprotected heights and dangerous machinery"; (3) Plaintiff cannot "work in an environment requiring fast-paced production"; (4) Plaintiff cannot "perform work that requires interaction with the general public"; (5) Plaintiff can "remember, understand, and carry out tasks or instructions consistent with occupations with a Specific Vocational Preparation code of one or two"; (6) Plaintiff can "make simple work-related decisions with few, if any, workplace changes"; and (7) Plaintiff can "work in proximity to co-workers, but would do best with tasks that do not require teamwork." (Tr. 71.) At step four, the ALJ concluded that Plaintiff was unable to perform his past relevant work. (Tr. 77.) At step five, the ALJ concluded that Plaintiff was not disabled because a significant number of jobs existed in the national economy that he could perform, including work as an industrial cleaner and salvage laborer. (Tr. 78-79.) /// /// ///
ANALYSIS
I. STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner's findings are "'not supported by substantial evidence or [are] based on legal error.'" Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as "'more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
The district court "cannot affirm the Commissioner's decision 'simply by isolating a specific quantum of supporting evidence.'" Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the ALJ's decision must be upheld; the district court may not substitute its judgment for the judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
II. DISCUSSION
In this appeal, Plaintiff argues that the ALJ erred by: (1) failing to provide clear and convincing reasons for discounting Plaintiff's symptom testimony; (2) failing to provide specific and legitimate reasons for discounting the opinion of Plaintiff's examining psychologist, Dr. Wicher; (3) failing adequately to formulate an RFC that accounted for the limitations identified by Dr. Anderson, a non-examining state agency psychological consultant; and (4) failing adequately to develop the record at step three of the five-step disability analysis. As explained below, the Court concludes that the Commissioner's decision is based on legal error and not supported by substantial evidence. Accordingly, the Court recommends that the district judge reverse the Commissioner's decision and remand this case for further administrative proceedings.
A. Plaintiff's Symptom Testimony
1. Applicable Law
The Ninth Circuit has "established a two-step analysis for determining the extent to which a claimant's symptom testimony must be credited[.]" Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). Second, "[i]f the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives specific, clear and convincing reasons for the rejection." Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation and quotation marks omitted).
Under Ninth Circuit case law, clear and convincing reasons for rejecting a claimant's subjective symptom testimony "include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the claimant's testimony or between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of." Bowers v. Astrue, No. 11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007), and Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).
2. Application of Law to Fact
In this case, there is no evidence of malingering and the ALJ determined that Plaintiff has provided objective medical evidence of an underlying impairment which might reasonably produce the symptoms alleged. (See Tr. 77, indicating that the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms"). Accordingly, the ALJ was required to provide clear and convincing reasons for discrediting Plaintiff's testimony. (See Def.'s Br. at 3, implying that the ALJ needed to provide "clear and convincing" reasons for discounting Plaintiff's testimony). The ALJ met that standard here.
a. Conflicting Medical Evidence
First, the ALJ discounted Plaintiff's testimony based on conflicting objective medical evidence. (See Tr. 72, "Turning to the medical evidence, the objective findings in this case are not consistent with the claimant's allegations of disabling symptoms and limitations."). It is well settled that an ALJ may discount a claimant's symptom testimony based on conflicting objective medical evidence. See Centanni v. Berryhill, 729 F. App'x 560, 562 (9th Cir. 2018) (holding that the ALJ provided clear and convincing reasons for discounting the claimant's testimony and stating that the "ALJ properly rejected" the claimant's testimony "based on inconsistency with the objective medical evidence showing largely unremarkable . . . examinations") (citation omitted).
Plaintiff argues that "[r]ejecting claimant testimony for being inconsistent with objective evidence is insufficiently specific." (Pl.'s Opening Br. at 13-14.) After making the above statement, however, the ALJ specifically described several unremarkable mental examination findings. (See Tr. 73-74, noting that Plaintiff's "attending social workers stated that he showed orientation in all spheres," Plaintiff "exhibited mood, speech, and thoughts all within normal limits," Plaintiff denied experiencing visual or auditory hallucinations, paranoia, or disturbance of mood, Plaintiff "displayed organized and goal-oriented thinking, and fair judgment," Plaintiff "showed a neutral mood and calm psychomotor activity, without agitation," an "attending nurse described [Plaintiff's] thoughts as organized clear, and direct," during Dr. Wicher's evaluation, Plaintiff "demonstrated satisfactory common sense judgment, abstraction, generalization ability, and fund of general information," and "showed adequate proverb interpretation," Dr. Wicher opined that Plaintiff's "thought processes appeared grossly intact" and she found "no overt indications of hallucinations or delusions" during her clinical interview, a mental status exam revealed Plaintiff's "alertness and awareness of time, person, and place," and Dr. Vinocur's February 2015 "mental status examination revealed only minimal involuntary movements and a subdued affect," and Dr. Vinocur indicated that Plaintiff's "insight and judgment seemed fair to good").
Accordingly, the ALJ's reasoning was sufficiently specific. See Despinis v. Comm'r Soc. Sec. Admin., No. 16-1373-HZ, 2017 WL 1927926, at *7 (D. Or. May 10, 2017) ("While the ALJ's opinion could have more clearly stated each reason and how it served to discount [the evidence in question], the Court is able to 'reasonably discern' the ALJ's path") (citing Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015))); see also Potter v. Astrue, No. 10-1527-SI, 2012 WL 1071131, at *10 n.5 (D. Or. Mar. 29, 2012) ("As the Ninth Circuit has explained, it is not necessarily reversible error when the ALJ fails to explicitly link his reasons to the rejection of certain evidence, as long as his reasoning is clear from his decision") (citing Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989)), rev'd on other grounds, 571 F. App'x 569 (9th Cir. 2014).
Plaintiff also argues that the ALJ's symptom analysis was flawed because the ALJ discounted Plaintiff's "testimony for being inconsistent with the RFC the ALJ . . . created[.]" (Pl.'s Opening Br. at 14.) It is well settled that an ALJ's RFC determination "must be based on the evidence . . . , rather than forcing the [evidence] into a foregone" RFC determination. Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017) (citation and quotation marks omitted). However, even if an ALJ commits such an error, the error may be harmless. See id. at 1153-54 (stating that the Ninth Circuit has held that "inclusion of this flawed boilerplate language is not, by itself, reversible error and can be harmless"); Ash v. Berryhill, 676 F. App'x 632, 632-33 (9th Cir. 2017) ("Ash contends that the ALJ's credibility finding was inadequate because the ALJ used circular reasoning in finding that Ash's statements were not credible 'to the extent they [were] inconsistent with the . . . residual functional capacity assessment.' This contention lacks merit because the ALJ proceeded to give specific reasons for the credibility finding.") (citation omitted). Here, any error was harmless because the ALJ also provided specific reasons for discounting Plaintiff's testimony. (See Tr. 72, stating that Plaintiff's allegations are "not consistent" with the objective findings; Tr. 76-77, stating that Plaintiff's allegations "are not consistent with the overall records," that Plaintiff's reported activities "are not limited to the extent one would expect, given his complaints of disabling symptoms and limitations," and that Plaintiff's testimony is "not entirely consistent with the medical evidence and other evidence in the record").
In addition, Plaintiff notes that the ALJ discounted his symptom testimony based, in part, on medical records showing, inter alia, that Plaintiff "reported a decrease in hallucinations and paranoia" on medication and that Plaintiff's treating psychiatrist, Dr. Vinocur, found that he was "doing 'fairly well.'" (Pl.'s Opening Br. at 14.) Plaintiff argues that the ALJ erred in discounting his symptom testimony based on such evidence because the ALJ (1) failed to "consider the full tone and contents of all records and reports"; (2) "ignored portions of the record" showing that Plaintiff's "improvement required a high level of structure and support"; and (3) impermissibly cherry-picked medical records documenting intermittent periods of improvement. (Pl.'s Opening Br. at 14-15.)
This Court is not persuaded that the ALJ ignored portions of the record or cherry-picked medical records. Rather, in the Court's view, the ALJ offered a rational interpretation of the longitudinal record that is supported by substantial evidence. (See Tr. 73-74, noting that although Plaintiff "reported visual hallucinations in the form of 'ghosts,' consistent compliance with medication appeared to lessen this symptom," Plaintiff reported that he did "not really notice the voices that much" since he started taking medication, Plaintiff's social worker observed that his "medications helped with his auditory and visual hallucinations," Plaintiff "continued to sustain an abatement of symptoms at further counseling sessions" and "denied auditory or visual hallucinations, paranoia, or disturbance of mood," Plaintiff reported that he "no longer heard voices since shortly after he began taking risperidone," and Plaintiff's treating psychiatrist, Dr. Vinocur, observed in April 2015 that Plaintiff "was doing 'fairly well' and he reported good control of psychotic symptoms"; see also Tr. 383, noting on June 27, 2012, that Plaintiff reported that he experiences "'ghosts and cold feeling'" sensations that "started post-methamphetamine abuse," and he acknowledged that these sensations are "controlled by medication," Tr. 371, stating on April 29, 2013, that Plaintiff's "current medication regimen is continuing to work for him," and that Plaintiff is "consistent about taking his medications and . . . realize[s] that he 'needs them' and they work for him and his [mental health] symptoms," Tr. 411, observing on June 19, 2013, that Plaintiff reported that he "has not had any recent symptoms," "has not had depressive symptoms in about ten years," and "has experienced auditory hallucinations" in the past, and he denied any "active psychiatric symptoms," including "active hallucinations," Tr. 390-91, noting on July 12, 2013, that Plaintiff stated that his "mental health issues [were] well controlled at [that] time," Tr. 416, stating on July 31, 2013, that Plaintiff seemed "to be doing fairly well" overall and reported his mood was "good," he had "not experienced depression symptoms for a month or two," he "has not experienced any recent psychotic symptoms," his "mood has been fairly stable," and "[i]n general, he feels as if he has been doing fairly well," Tr. 420, observing on September 26, 2013, that Plaintiff "self-report[ed] no current mental health-related symptoms or stressors," Tr. 426, noting on November 13, 2013, that Plaintiff reported that he was "doing quite well" and denied "current affective or psychotic symptoms," Tr. 426-27, stating on December 11, 2013, that Plaintiff denied "any recent psychotic symptoms," Tr. 428, observing on January 8, 2014, that Plaintiff reported that "he was doing well and . . . thing[s] were going well for him lately," and he was "not having any troubles . . . with [mental health] symptoms," Tr. 444, noting on April 29, 2015, that Plaintiff reported "doing fairly well" and he had "good control of [his] psychotic symptoms").
While Plaintiff provides an alternative, rational interpretation of the medical evidence, the ALJ's interpretation was rational and, therefore, must be upheld. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.") (citation omitted). Accordingly, the Court concludes that the ALJ did not err in discounting Plaintiff's symptom testimony based on conflicting medical evidence.
b. Reported Activities
The ALJ also discounted Plaintiff's symptom testimony based on his reported activities. (See Tr. 77, stating that Plaintiff "engages in activities that are not limited to the extent one would expect, given his complaints of disabling symptoms and limitations"). "Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination." Ghanim, 763 F.3d at 1165 (citations omitted); see also Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) ("Even where [the] activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.") (citations omitted). In support of her finding, the ALJ noted that Plaintiff testified that he often uses public transportation to go to thrift stores, he "sells thrift store items on eBay," he "spends about a quarter of his day on the computer to conduct these sales," and he goes out to eat with friends. (Tr. 77; see also Pl.'s Reply at 2, noting that Plaintiff reported "spending 25 percent of his day on the computer, working in the kitchen while incarcerated, reading 50 pages a day while incarcerated, playing pinochle while incarcerated, showering and grooming, . . . socializing, using public transportation, shopping in thrift stores and selling purchased items online") (internal citations omitted).
Plaintiff argues that he only engaged in the above activities when he was "most stable." (Pl.'s Opening Br. at 16.) Plaintiff's testimony fails to support this argument. (See Tr. 94-96, Plaintiff testified that he cannot work and he "started buying things from thrift stores and selling them on eBay" about three months ago because he was looking "for something to do really"; Tr. 95, "Q. Okay. And the other times of the day [when you are not shopping or on eBay], are you like -- do you watch TV, read, what kind of things do you do to fill up [the remainder] of your time? A. Well, I got a couple of friends I go out to eat with, you know. I like organiz[ing] my things [too] . . . . Q. Okay. So what do you and your friends do when you go out? A. We just go out to eat different places . . . . or I go to [my friend's] house and we watch movies").
In addition, Plaintiff argues that the ALJ's symptom analysis was flawed because she failed to meet the specificity requirements explained in Brown-Hunter, 806 F.3d at 493-94. In Brown-Hunter, the ALJ "stated only that she found, based on unspecified claimant testimony and a summary of medical evidence, that 'the functional limitations from the claimant's impairments were less serious than she has alleged.'" Id. at 493. On appeal, the Ninth Circuit held that the ALJ's symptom analysis was erroneous, noting that a reviewing court could not "discern the agency's path because the ALJ made only a general credibility finding without providing any reviewable reasons why she found [the claimant's] testimony to be not credible." Id. at 494.
In contrast here, the ALJ provided reviewable reasons why she found Plaintiff's testimony to be not credible, and the Court can reasonably discern the ALJ's path. Indeed, the ALJ observed that Plaintiff "alleged disability based on schizophrenia and depression," "reported that he experiences symptoms, such as confusion, panic attacks, [and] shortened attention span," and "stated that he has a number of limitations, some of which are understanding, remembering, and focusing." (Tr. 72.) The ALJ determined that Plaintiff's allegations of disabling symptoms and limitations is incompatible with, inter alia, the fact that Plaintiff often takes public transportation to "shop[] in thrift stores surrounded by other customers" and goes out to eat with friends, and spends a quarter of his day on the computer conducting business on eBay. (Tr. 77.)
It is reasonable to infer from the ALJ's decision that she found the foregoing activities inconsistent with Plaintiff's allegedly disabling symptoms and limitations, such as confusion, shortened attention span, panic attacks, and difficulties understanding, remembering, and focusing. See generally Wilcox ex. rel. Wilcox v. Colvin, No. 13-2201-SI, 2014 WL 6650181, at *7 (D. Or. Nov. 24, 2014) (stating that a court "may draw reasonable inferences from the ALJ's decision 'if those inferences are there to be drawn'" (quoting Magallanes, 881 F.2d at 755)). It was also reasonable for the ALJ to discount Plaintiff's claim of complete disability based on his reported activities. See Molina, 674 F.3d at 1113 ("Even where [the] activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment."); Senser v. Colvin, No. 15-2387-AA, 2017 WL 253847, at *3 (D. Or. Jan. 19, 2017) (holding that the ALJ "permissibly concluded" that the claimant's ability to, inter alia, "sell items on eBay" was incompatible with her allegation of debilitating mental and social limitations); Hudson v. Astrue, No. 10-1109-JE, 2013 WL 474799, at *5 (D. Or. Jan. 7, 2013) (holding that the ALJ did not err in discounting the claimant's testimony based, in part, on the fact that she sold "items through eBay to support herself").
For these reasons, the Court finds Brown-Hunter distinguishable and that the ALJ appropriately concluded that Plaintiff's activities contradict his symptom testimony.
3. Conclusion
The Court must uphold the ALJ's decision to discount Plaintiff's testimony because the ALJ provided two clear and convincing reasons for doing so. See Anderson v. Colvin, 223 F. Supp. 3d 1108, 1129 (D. Or. 2016) ("[T]he ALJ provided two clear and convincing reasons for finding Plaintiff's symptom testimony not supported by the record. Accordingly, the Court must uphold the ALJ's determination."); Mones v. Comm'r Soc. Sec. Admin., No. 14-917-CL, 2015 WL 4645448, at *7 (D. Or. July 1, 2015) (holding that the ALJ erred in discounting the claimant's symptom testimony based on her activities and conflicting medical evidence, but adding that any error was harmless because the ALJ did "provide[ ] two clear and convincing reasons").
B. Medical Opinion Evidence
1. Applicable Law
"There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians." Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). In the event "a treating or examining physician's opinion is contradicted by another doctor, the '[ALJ] must determine credibility and resolve the conflict.'" Id. (citation omitted). "An ALJ may only reject a treating physician's contradicted opinions by providing 'specific and legitimate reasons that are supported by substantial evidence.'" Ghanim, 763 F.3d at 1161 (citation omitted).
"An ALJ can satisfy the 'substantial evidence' requirement by 'setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'" Garrison, 759 F.3d at 1012 (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Merely stating conclusions is insufficient: "The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id. "[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion." Id. at 1012-13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)).
2. Application of Law to Fact
Plaintiff argues that the ALJ failed to provide specific and legitimate reasons for discounting the opinion of his examining psychologist, Dr. Wicher. (See Pl.'s Opening Br. at 17, noting that the ALJ assigned "some weight" to Dr. Wicher's opinion and the "greatest weight" to the state agency psychological consultants' opinions, and asserting that "[a]n ALJ may accept non-examiner opinion over [an] examiner['s] opinion only by providing specific and legitimate reasons"). As explained below, the Court concludes the ALJ provided specific and legitimate reasons for discounting Dr. Wicher's opinion. See generally Cha Yang v. Comm'r of Soc. Sec. Admin., 488 F. App'x 203, 204 (9th Cir. 2012) ("[A]lthough a state agency physician's opinion, standing alone, cannot constitute substantial evidence [for rejecting a doctor's opinion], it can be substantial evidence when the ALJ points to other evidence as well." (citing Magallanes, 881 F.2d at 752-53)).
a. The ALJ's Decision
The ALJ noted that Dr. Wicher opined that Plaintiff's primary barriers to employment are his "moderate deficits in his ability to perform activities of daily living," his "moderate to marked deficits in social functioning," and his "moderate deficits in concentration, persistence, and pace." (Tr. 76.) The ALJ's decision suggests that she accepted Dr. Wicher's opinion that Plaintiff suffers from moderate deficits in (1) concentration, persistence, and pace, and (2) his ability to perform activities of daily living. (See Tr. 70, finding that Plaintiff suffers from "moderate restriction" in his ability to perform activities of daily living and "moderate difficulties" in maintaining concentration, persistence, and pace; Tr. 71, formulating an RFC that limits Plaintiff to work that involves, inter alia, remembering, understanding, and carrying "out tasks or instructions consistent with occupations with a Specific Vocational Preparation code of one or two," no "fast-paced production," and making "simple work-related decisions with few, if any, workplace changes"; Tr. 76, indicating that the ALJ limited "the pace and skill level which takes into account [Plaintiff's] difficulty with concentration and pace"; Tr. 76, noting that the ALJ viewed Dr. Wicher's opinion evidence "favorably to the extent consistent with the [RFC] assessment").
The Court notes that Dr. Wicher's opinion did not define what equated to a "moderate" limitation, and unlike the state agency consultants, Dr. Wicher did not complete a mental RFC assessment.
The ALJ's decision also suggests that she discounted Dr. Wicher's opinion that Plaintiff suffers from up to marked limitations in social functioning. (See Tr. 70, finding that Plaintiff suffers "moderate difficulties" in social functioning, and noting that Plaintiff informed Dr. Wicher that he spends "most of his time by himself," but he testified that he "shops in thrift stores surrounded by other customers" and goes out to eat with "a couple friends"; Tr. 71, formulating an RFC that limits Plaintiff to work that involves, inter alia, no interaction with the general public, working "in proximity to co-workers," and performing "tasks that do not require teamwork"; Tr. 75, "As for the opinion evidence, the undersigned accords greater weight to the opinions of the state agency psychological consultants [i.e., Drs. Hennings and Anderson]"; Tr. 76, indicating that the ALJ assigned only "some weight" to Dr. Wicher's opinion because the ALJ "gave greater credence to treatment notes evidencing [Plaintiff's] consistently polite and cooperative demeanor at counseling appointments"; Tr. 77, "Regarding [Plaintiff's] social functioning, the consultative examiner [i.e., Dr. Wicher] noted moderate to marked deficits, yet the record and [Plaintiff's hearing] testimony indicated that he does have a few friends and they go out together. . . . He [also] cooperates with treating medical sources, and there is no evidence that he possesses marked limitations in social functioning. The [RFC] incorporates [Plaintiff's] limitations in social functioning by restricting his interaction with the public and co-workers") (citation omitted).
Drs. Hennings and Anderson assessed Plaintiff's social interaction limitations. They determined that Plaintiff was "[m]oderately limited" in his ability to interact with the general public and "[n]ot significantly limited" in the four remaining categories of social interaction. (Tr. 133, 146.)
b. Plaintiff's Specific Arguments
As an initial matter, Plaintiff argues that the ALJ "neglected to specify which portions of Dr. Wicher's opinion were consistent with the RFC and which portions were inconsistent." (Pl.'s Opening Br. at 18.) From this Court's perspective, it is reasonable to infer from the ALJ's decision that she discounted Dr. Wicher's opinion only to the extent that Dr. Wicher opined that Plaintiff suffers from up to marked social limitations. (Compare Tr. 76, noting that Dr. Wicher opined that Plaintiff's primary barriers to employment are his "moderate deficits in his ability to perform activities of daily living," "moderate to marked deficits in social functioning," and "moderate deficits in concentration, persistence, and pace," with Tr. 70, finding that Plaintiff suffers from "moderate difficulties" in social functioning, "moderate restriction" in his ability to perform activities of daily living, and "moderate difficulties" in maintaining concentration, persistence, and pace, and Tr. 76, noting that the ALJ viewed Dr. Wicher's opinion "favorably to the extent consistent with the [RFC] assessment" and assigned Dr. Wicher's opinion only some weight based on "treatment notes evidencing [Plaintiff's] consistently polite and cooperative demeanor," and Tr. 77, "Regarding [Plaintiff's] social functioning, [Dr. Wicher] noted moderate to marked deficits, yet the record and [Plaintiff's] testimony indicated that he does have a few friends and they go out together. . . . He [also] cooperates with treating medical sources, and there is no evidence that he possesses marked limitations in social functioning. The [RFC] incorporates [Plaintiff's] limitations in social functioning by restricting his interaction with the public and co-workers").
Plaintiff also argues that the ALJ "devised an RFC before considering Dr. Wicher's opinion when proper analysis required the reverse order." (Pl.'s Opening Br. at 18.) Even assuming the ALJ used circular reasoning in assessing Dr. Wicher's opinion, any error was harmless because the ALJ also gave specific reasons for rejecting Dr. Wicher's opinion that Plaintiff suffers from up to marked limitations in social functioning. See Ash, 676 F. App'x at 632-33 ("Ash contends that the ALJ's credibility finding was inadequate because the ALJ used circular reasoning in finding that Ash's statements were not credible 'to the extent they [were] inconsistent with the . . . residual functional capacity assessment.' This contention lacks merit because the ALJ proceeded to give specific reasons for the credibility finding.") (citation omitted).
Indeed, as discussed in Part II.B.2.a., the ALJ's decision suggests that she found Dr. Wicher's opinion regarding marked social limitations inconsistent with Plaintiff's activities (i.e., Plaintiff often goes out to eat with friends and shops at thrift stores around other customers) and his ability to appropriately interact with his providers. These were specific and legitimate reasons for assigning only some weight to Dr. Wicher's opinion. See Green v. Berryhill, 731 F. App'x 596, 597 (9th Cir. 2018) (holding that the ALJ provided several specific and legitimate reasons to discount a physician's opinion, including that the opinion was inconsistent with the claimant's activities); Brown v. Colvin, No. 16-cv-00376, 2016 WL 7839352, at *2-3 (W.D. Wash. Dec. 28, 2016) (holding that the ALJ provided specific and legitimate reasons for discounting the opinions of examining psychologists who opined that the claimant suffered from "marked and severe social limitations," and noting that the ALJ found the opinions inconsistent with the claimant's ability "to appropriately interact with providers and engage in social activities independently"); see also Jacobsen v. Berryhill, No 17-cv-05252, 2017 WL 6016338, at *3-4 (W.D. Wash. Dec. 4, 2017) (holding that the ALJ provided specific and legitimate reasons for discounting the opinions of examining psychologists who opined that the claimant suffered from severe social limitations, and noting that the ALJ cited evidence inconsistent with severe social limitations, including the claimant's ability to "interact appropriately with her medical providers" and "visit friends"); Chambers v. Berryhill, No. 17-cv-05175, 2017 WL 3700800, at *2 (W.D. Wash. Aug. 28, 2017) (holding that the ALJ provided specific and legitimate reasons for discounting an examining psychologist's opinion that the claimant suffered from marked limitations in social functioning, and noting that the ALJ appropriately relied on, among other things, records documenting the claimant's "cooperative and pleasant demeanor at medical appointments").
Plaintiff argues that the ALJ's reasons for discounting Dr. Wicher's opinion were insufficient because the ALJ impermissibly cherry-picked record evidence to support her findings. (See Pl.'s Opening Br. at 18, arguing that the ALJ "disregarded significant portions of other treatment notes that are consistent with Dr. Wicher's conclusions"; see also Pl.'s Reply at 5, noting that the Commissioner argues that the ALJ properly discounted Dr. Wicher's opinion as inconsistent with Plaintiff's "activities and with his demeanor in some appointments," stating that Plaintiff "does not dispute that he has been able to function and present well sporadically," and arguing that Plaintiff "remains highly prone to decompensate when overtaxed"). The Court disagrees.
"Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld." Burch, 400 F.3d at 679 (citation omitted). While Plaintiff provides an alternative, rational interpretation of the evidence, the ALJ's interpretation was rational and, therefore, must be upheld. (See Tr. 73, noting that "[m]ultiple counseling sessions chronicled [Plaintiff's] polite and cooperative demeanor," a social worker described Plaintiff as "personable," a social worker indicated that Plaintiff "maintained good eye contact, and 'laughed and smiled appropriately,'" a social worker reported that Plaintiff "was engaged, polite, and respectful during the session," Plaintiff "demonstrated a respectful and talkative demeanor with his social worker," a social worker noted that Plaintiff "demonstrated a somewhat restricted affect," but he also "maintained good eye contact during the entirety of the session" and "was able to laugh at comments and smiles at times," and a nurse described Plaintiff as "polite and cooperative"; see also Tr. 94-96, indicating that Plaintiff testified that he cannot work and he "started buying things from thrift stores and selling them on eBay" about three months ago because he was looking "for something to do really"; Tr. 95, "Q. Okay. And the other times of the day [when you are not shopping or on eBay], are you like -- do you watch TV, read, what kind of things do you do to fill up [the remainder] of your time? A. Well, I got a couple of friends I go out to eat with, you know. I like organiz[ing] my things [too] . . . . Q. Okay. So what do you and your friends do when you go out? A. We just go out to eat different places . . . . or I go to [my friend's] house and we watch movies"; Tr. 406, indicating that Plaintiff "was cooperative throughout [Dr. Wicher's] evaluation," Tr. 435, noting that Plaintiff's attitude was cooperative and friendly, Tr. 437, stating that Plaintiff "presented polite, cooperat[ive] and organized during sessions," Tr. 494, observing that Plaintiff "was cooperative with questioning"; infra Part II.A.2.a., detailing evidence that further supports the ALJ's rational interpretation of the record).
3. Conclusion
For these reasons, the Court concludes that the ALJ provided specific and legitimate reasons, supported by substantial evidence, for discounting Dr. Wicher's opinion. See Bailey v. Colvin, 659 F. App'x 413, 415 (9th Cir. 2016) (holding that the ALJ provided two specific and legitimate reasons for rejecting a treating physician's opinions, and therefore concluding that "[a]ny error in the ALJ's additional reasons for rejecting [the physician's] opinions was harmless") (citation omitted); Shoemaker v. Berryhill, 710 F. App'x 750, 751 (9th Cir. 2018) (holding that the ALJ provided two specific and legitimate reasons for discounting the opinion of an examining psychologist and concluding that ALJ's three erroneous reasons were harmless error).
C. The ALJ's RFC Determination
Plaintiff argues that, despite assigning the "greatest weight" to the opinions of the state agency psychologist consultants, Drs. Hennings and Anderson, the ALJ's RFC determination failed to incorporate Dr. Anderson's finding that Plaintiff suffers from moderate limitations in social functioning and maintaining concentration, persistence, and pace. (Pl.'s Opening Br. at 19.) "The hypothetical an ALJ poses to a [VE], which derives from the RFC, 'must set out all the limitations and restrictions of the particular claimant.'" Valentine, 574 F.3d at 690 (citation omitted). As such, "an RFC that fails to take into account a claimant's limitations is defective." Id.
While the ALJ stated that she assigned Dr. Anderson's opinion the "greatest weight" (Tr. 75), nothing in the ALJ's decision suggests that she did anything other than fully credit Dr. Anderson's opinion. Indeed, the ALJ did not provide any reasons for failing fully to credit Dr. Anderson's opinion. The Commissioner argues that the ALJ's "decision was consistent with the moderate limitations" identified by Dr. Anderson, and therefore the ALJ did not err in weighing Dr. Anderson's opinion. (Def.'s Br. at 10, citing Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010)). In Turner, the Ninth Circuit rejected the claimant's argument that the ALJ erred in rejecting his doctor's findings based, in part, on the fact that the ALJ incorporated the doctor's observations into the ALJ's RFC determination. Turner, 613 F.3d at 1222-23.
Unlike in Turner, here the ALJ's RFC determination failed adequately to incorporate the limitations identified by Dr. Anderson. Dr. Anderson found that Plaintiff suffered from moderate limitations in social functioning and in his ability to maintain concentration, persistence, and pace. (Tr. 143.) In her mental RFC assessment, Dr. Anderson explained that, in light of these moderate limitations, Plaintiff would consistently only be able to "remember simple 1-2 step instructions," maintain concentration, persistence, and pace "for simple tasks for normal 2-hour work periods," and sustain adequate attention, concentration, and pace "for simple 1-2 step task completion," assuming he worked "[i]n a slow-paced routine setting not in direct contact with [the] public." (Tr. 145-46.) The ALJ's RFC determination and VE hypothetical were largely based on the limitations identified by Dr. Anderson. (See Tr. 71, 106, formulating an RFC and VE hypothetical that limits the individual to work that is free of fast-paced production requirements, involves "simple work-related decisions," does not require interaction with the general public, and involves remembering, understanding, and carrying out "tasks or instructions consistent with occupations with a Specific Vocational Preparation code of one or two"). Absent from the ALJ's RFC and VE hypothetical, however, is Dr. Anderson's limitation to "simple 1-2 step task completion," i.e., the type of tasks Plaintiff is capable of performing in "a slow-paced routine setting."
The foregoing omission is significant because, in responding to the ALJ's hypothetical, the VE testified that Plaintiff could perform two jobs: (1) industrial cleaner and (2) salvage laborer. (Tr. 106-07; see also Tr. 78-79, indicating that the ALJ denied Plaintiff's application based on the VE's testimony that Plaintiff could perform the jobs of industrial cleaner and salvage laborer). Both jobs have a Specific Vocational Preparation ("SVP") code of two. (Tr. 106-07.) However, both jobs also require a worker to employ Level 2 Reasoning. See Porter v. Colvin, 12-cv-010821, 2014 WL 465422, at *5 (C.D. Cal. Feb. 5, 2014) ("stating that industrial-cleaner job requires level-two reasoning" (citing DOT 381.687-018, 1991 WL 673258)); Stanton v. Comm'r Soc. Sec. Admin., 899 F.3d 555, 558 (8th Cir. 2018) (explaining that the job of industrial cleaner "requires a worker to employ Level 2 Reasoning"); DOT 929.687-022, 1991 WL 688172 (stating that the job of salvage laborer requires a worker to employ "Reasoning: Level 2").
"SVP levels indicate the amount of time it takes the 'typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.'" Thornbrugh v. Berryhill, No. 3:16-cv-01872-SI, 2018 WL 1509162, at *6 (D. Or. Mar. 27, 2018) (citation omitted). An "SVP [of] 2 means 'anything beyond a short demonstration up to and including 1 month.'" Bray, 554 F.3d at 1230 n.4 (citation omitted).
Level 2 Reasoning "entails the ability to 'apply commonsense understanding to carry out detailed but uninvolved written or oral instructions[.]'" Molina v. Berryhill, 734 F. App'x 492, 495 (9th Cir. 2018) (brackets omitted) (quoting Rounds v. Comm'r of Soc. Sec., 807 F.3d 996, 1003-04 (9th Cir. 2015)). The Ninth Circuit has "found RFC's limiting claimants to 'one- and two-step tasks' conflict with the requirements of Level 2 reasoning[.]" Id. (quoting Rounds, 807 F.3d at 1003-04).
If, as the Commissioner argues, the ALJ's decision, including her RFC determination, is consistent with the limitations identified by Dr. Anderson, the VE should have identified jobs in response to the ALJ's VE hypothetical, which was derived from the RFC, that were consistent with Dr. Anderson's opinion. That did not occur here. (See Tr. 75, 78-79, indicating that the ALJ assigned the "greatest weight" to the opinions of Drs. Anderson and Hennings, who opined that Plaintiff "would be able to sustain adequate attention, concentration, and pace for simple one- to two-step task completion," and that the ALJ determined Plaintiff was not disabled because the VE testified that he could work as an industrial cleaner and salvage laborer, which, as discussed above, require Level 2 Reasoning); see also Molina, 734 F. App'x at 495 ("[W]e have found RFC's limiting claimants to 'one-and two-step tasks' conflict with the requirements of Level 2 reasoning"); Rounds, 807 F.3d at 1002 (explaining that Level 1 Reasoning entails the ability to "[a]pply commonsense understanding to carry out simple one- or two-step instructions"). Accordingly, the Court recommends that the district judge remand this case for further proceedings to allow the ALJ to address the conflict between Dr. Anderson's opinion, the RFC and VE hypothetical, and the jobs identified by the VE in response to the ALJ's VE hypothetical.
In light of the Court's conclusion that this case should be remanded for further analysis of Plaintiff's RFC and ability to perform other work that exists in significant numbers in the national economy, the Court need not address Plaintiff's argument that the ALJ failed adequately to develop the record regarding whether Plaintiff satisfies part C of Listing 12.03, which is based, in part, on evidence that postdates the ALJ's initial decision. (See Pl.'s Opening Br. at 12-13; Pl.'s Reply at 3-4.) On remand, the ALJ will have the opportunity further to consider part C of Listing 12.03 and review the additional evidence that Plaintiff submitted to the Appeals Council. See Martinez v. Comm'r of Soc. Sec. Admin., No. 14-1095, 2015 WL 5657129, at *7 (E.D. Cal. Sept. 24, 2015) ("In light of the court's conclusion that the case must be remanded for further analysis of plaintiff's RFC and a proper step 5 determination [i.e., plaintiff's ability to perform other work in the economy], the court declines to reach the remaining issues presented by plaintiff. . . . On remand, the ALJ will have an opportunity to further consider these issues"); Carter v. Astrue, No. 11-0194, 2012 WL 1584472, at *3 (D. Kan. May 4, 2012) (declining to consider the argument that the ALJ erred at step three because the case was remanded for further proceedings).
The Appeals Council found that Plaintiff's additional evidence did "not relate to the period at issue" because it postdated the date of the ALJ's decision. (See Tr. 2, stating that the relevant inquiry was whether Plaintiff was disabled on or before June 1, 2016, the date of the ALJ's decision). --------
CONCLUSION
For the foregoing reasons, the Court recommends that the district judge REVERSE the Commissioner's decision and REMAND this case for further proceedings consistent with this opinion.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 30th day of November, 2018.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge